Chudy v. Astrue

Filing 37

Magistrate Judge Kenneth P. Neiman: ORDER entered. MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S 32 MOTION FOR RECONSIDERATION UNDER RULE 59(e), for the reasons stated, the court concludes that its April 4, 2014 order to remand was not a manifest error of law and, further, that Gill does not represent an intervening change in the controlling law. Accordingly, the court DENIES Defendant's Motion for Reconsideration Under Rule 59(e).(Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN CHUDY,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration
Defendant

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Civil Action No. 12-30210-KPN

MEMORANDUM AND ORDER WITH REGARD TO
DEFENDANT’S MOTION FOR RECONSIDERATION UNDER RULE 59(e)
(Document No. 32)
December 23, 2014
NEIMAN, U.S.M.J.
Presently at issue is the defendant Commissioner’s motion, pursuant to Fed. R.
Civ. P. 59(e), seeking reconsideration of the court’s April 4, 2014 Memorandum and
Order of Judgment, which remanded this matter for further administrative proceedings.
See Chudy v. Colvin, 10 F. Supp. 3d 203 (D. Mass. 2014). The Commissioner asserts
that due to the First Circuit’s decision in Gill v. Colvin, No. 13-1792 (1st Cir. Apr. 9,
2014), issued five days earlier, a “manifest error of law” has occurred with respect to the
court’s remand. For the following reasons, the court disagrees and will deny the
Commissioner’s motion.
1.
In pursuing her motion, the Commissioner relies on a Rule 59 standard set out in
Ruiz Rivera v. Pfizer Pharmaceuticals, LLC, 521 F.3d 76, 81-82 (1st Cir. 2008), which
describes certain circumstances in which a motion for reconsideration may be granted,
including the one invoked here, a “manifest error of law.” Upon closer examination,

however, it appears that the Commissioner might more accurately be seeking
reconsideration based on an “intervening change in the controlling law,” a category
recently cited in both In re Genzyme Corp. Sec. Litig., 754 F.3d 31, 46 (1st Cir. 2014)
and Soto–Padró v. Pub. Bldgs. Auth., 675 F.3d 1, 9 (1st Cir.2012)). See also United
Sates v. Allen, 573 F.3d 42, 53 (1st Cir. 2009).
Whatever the grounds invoked, of course, the court has “considerable discretion”
to grant or deny a motion for reconsideration. Soto–Padró, 675 F.3d at 9. Accord
United States v. 5 Bell Rock Rd., 896 F.2d 605, 611 (1st Cir. 1990) (citing Appeal of
Sun Pipe Line Co., 831 F.2d 22, 25 (1st Cir. 1987)). Indeed, the instances when
reconsideration is allowed are to be “narrowly configured and seldom invoked.” United
States v. Connell, 6 F.3d 27, 31 (1st Cir. 1993). In short, the granting of a motion for
reconsideration is “an extraordinary remedy which should be used sparingly.” Palmer v.
Chamption Mortg., 465 F.3d 24, 30 (1st Cir. 2006).
2.
The court remanded this matter to the Social Security Administration on April 4,
2014, on several grounds, including its analysis of both a Program Operations Manual
System (“POMS”) directive and the decision in Allen v. Comm’r of Social Sec., 561 F.3d
646 (6th Cir. 2009), both of which were invoked by the Commissioner. See Chudy, 10
F. Supp. 3d at 204-205. Five days later, as indicated, the First Circuit issued its
decision in Gill, which the Commissioner now contends has changed the legal
landscape. Gill, the Commissioner asserts, addressed the same issue previously
addressed in part by this court in its prior order, namely, whether a subsequent award of
benefits by itself constitutes new and material evidence that warrants remand under 42

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U.S.C § 405(g). More specifically, the Commissioner argues, the First Circuit endorsed
the analysis set out in Allen, which this court had previously declined to adopt.
3.
As an initial matter, the court notes that Gill is an unpublished First Circuit opinion
and as such, has “no precedential value.” First Circuit Local Rule 36 (c). See, e.g.,
Fotos v. Internet Commerce Express, Inc., 154 F. Supp. 2d 212, 215 n.2 (D.N.H. 2001).
Thus, it cannot readily be assumed that Gill represents an “intervening change in the
controlling law” such that reconsideration is mandated. On the other hand, the court is
not persuaded, as Plaintiff suggests, that Gill’s analysis is mere dicta and should be
disregarded; the decision is cogent and, were it applicable to the instant facts, it might
well be persuasive. In this court’s view, however, the circumstances giving rise to the
instant matter are markedly different than those in Gill, let alone Allen, and still call for
the remand previously ordered.
As for Allen, the claimant himself sought remand of the administrative law judge’s
decision, based on a subsequent decision awarding him disability benefits. Allen, 561
F.3d at 647. The facts follow: on September 11, 2006, the administrative law judge
denied Allen’s application and, in December of that year, the Appeals Council denied
his request for review. Id. at 648-49. In the interim, Allen again applied for such
benefits andon February 25, 2007, received an award letter stating that he was found
disabled as of September 12, 2006, the day after the administrative law judge’s decision
on his prior application. Id. at 649. Allen then proffered the subsequent favorable
determination to the court and moved for a remand. The district court denied the motion
and the Sixth Circuit affirmed, reasoning that the “favorable decision itself, as opposed

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to the evidence supporting [that] decision, [did] not constitute new and material
evidence under § 405(g).” Id. at 653. In short, the court held, a subsequent favorable
decision standing alone “is not itself new and material evidence” under the sixth
sentence of 42 U.S.C. § 405(g). Id.1
Similarly in Gill, the claimant filed new claims after having twice been denied both
social security disability insurance benefits (“SSDI”) and supplemental security income
benefits (“SSI”), denials that were affirmed by an administrative law judge. The new
claims were granted and Gill’s onset date of disability was specified as June 9, 2011,
the day after the administrative law judge’s prior adverse decision. On appeal of the
adverse decision to federal court, Gill argued that he was entitled to a remand in light of
the subsequent award of benefits. See Gill v. Colvin, No. 11-462, 2013 WL 1673112
(D.R.I. Apr. 17, 2013). The court denied the motion, which denial was affirmed by the
First Circuit. Like the Allen court, the First Circuit concluded that, under the

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 The sixth sentence of section 405(g) reads as follows:

The court may, on motion of the Commissioner of Social Security made
for good cause shown before the Commissioner files the Commissioner's
answer, remand the case to the Commissioner of Social Security for
further action by the Commissioner of Social Security, and it may at any
time order additional evidence to be taken before the Commissioner of
Social Security, but only upon a showing that there is new evidence which
is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding; and the Commissioner of
Social Security shall, after the case is remanded, and after hearing such
additional evidence if so ordered, modify or affirm the Commissioner's
findings of fact or the Commissioner's decision, or both, and shall file with
the court any such additional and modified findings of fact and decision,
and, in any case in which the Commissioner has not made a decision fully
favorable to the individual, a transcript of the additional record and
testimony upon which the Commissioner's action in modifying or affirming
was based.
42 U.S.C. § 405(g) (sixth sentence).  
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circumstances, Gill had failed to carry his “burden of proving that evidence [was] new
and material to justify entitlement to a sentence six remand,” Gill v. Colvin, No. 13-1792
(1st Cir. April 9, 2014), at 5 (citing both Allen and Evangelista v. Sec’y of Health and
Human Servs., 826 F.2d 136, 139-40 (1st Cir. 1987)).2 Having only been presented
with Gill’s subsequent disability determination as grounds for remand, the First Circuit
was unable to determine whether the underlying findings related to the time period
concerning Gill’s first application or whether (or how) they may have differed from an
earlier report. Id.
4.
At first glance, both the Allen and Gill decisions appear similar to the situation
presently before the court, as the Commissioner maintains. However, in contrast to the
claimants in both Allen and Gill, Plaintiff himself never raised the issue of a later finding
of disability as grounds for reversing the denial of his SSDI application. Instead, it was
the Commissioner herself who revealed to the court that she would be reopening
Plaintiff’s SSI file (not the subject of the instant appeal), since her approval of Plaintiff’s
SSI application (as of April 9, 2012) had not taken into account the fact that Plaintiff was
supposed to be credited with a much earlier filing date in February of 2009. The
Commissioner explained that, given this protected filing date, Plaintiff’s SSI case would

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In Evangelista, the claimant had also sought remand under sentence six of section 405
(g) based on recently provided evidence from a new doctor. The court held that such
evidence, as presented, was merely “derivative rather than direct” and that, “to qualify
under the new/material standard, the discovered data must be meaningful – neither
pleonastic nor irrelevant to the basis for the earlier decision.” Evangelista, 826 F.2d at
139-40.  Because the new doctor happened to view the claimant’s medical records
differently and “happened to disagree with the conclusion reached by the ALJ,” the court
continued, such evidence did not render the existing evidence any less cumulative of
what already comprised the record and, thus, was not new to warrant remand. Id. at
140.  

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be reopened to determine whether the medical evidence supported an even earlier
onset date of disability. In light of the Commissioner’s explanation, the court recognized
that an earlier onset date, if proven for SSI purposes, could affect Plaintiff’s pending
SSDI appeal as well. Recall that the February 2009 date (for SSI purposes) was the
same as his filing date for SSDI, the subject of the case at bar.
Thus, unlike the situations in both Allen and Gill, the Commissioner herself
determined here that the evidence of record, albeit for SSI disability purposes, could be
material enough to extend Plaintiff’s eligibility retroactively. Indeed, based on the
evidence subsequently considered, the Disability Determination Service established a
new disability onset date of July 1, 2009. The only reason the Commissioner stopped at
July 1, 2009, rather than go back as far as the February 2009 date of application, was
her view that the cited POMS directive prevented her from going back any further.
For the reasons previously explained, the court was not persuaded that the
POMS directive controlled the retroactive date in the manner suggested by the
Commissioner or prevented the court itself from remanding the matter for further
consideration. Given that the materiality of the evidence supporting Plaintiff’s disability
was recognized by the Commissioner herself, the court deemed it inappropriate to place
an even greater burden on Plaintiff to provide yet other evidence to support the remand.
And unlike both the claimants in Gill and Allen, Plaintiff’s “subsequent” application for
SSI benefits had actually been given a protected filing date of February 2009, the same
date as Plaintiff’s SSDI application, rendering the two applications contemporaneous
rather than sequential.

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To be sure, the Commissioner questions how this “contemporaneous rather than
sequential” distinction is material. “The common and salient facts in all of the cases,”
the Commissioner asserts, “is that in separate determinations, the Commissioner found
the plaintiffs not disabled as of one date and disabled on adjacent dates.” (Defendant’s
Memorandum (Doc. No. 33), at 4.) Further, the Commissioner continues, “although the
applications [here] are constructively contemporaneous by virtue of administrative
necessity, the determinations on these applications, made by different adjudicators at
different points in time, were not.” (Id.)
As far as the court is concerned, it is not merely serendipitous that Plaintiff’s
SSDI and SSI applications were deemed to have the same date. So, when the
Commissioner herself decided that Plaintiff’s SSI application had mistakenly been
considered as having a much later date and needed to be reassessed, there was
nothing which precluded her from determining whether Plaintiff’s disability existed as the
earlier application date, the POMS directive notwithstanding. The result achieved,
namely finding Plaintiff disabled one day after his insured status for SSDI expired, is,
simply put, artificial. The contemporaneous nature of Plaintiff’s SSDI and SSI
applications does matter and, for that reason, among others addressed in the court’s
April 4, 2014 Memorandum and Order, this case is distinguishable from Allen and, in
turn, Gill.
ORDER
For the foregoing reasons, the court concludes that its April 4, 2014 order to
remand was not a manifest error of law and, further, that Gill does not represent an

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intervening change in the controlling law. Accordingly, the court DENIES Defendant’s
Motion for Reconsideration Under Rule 59(e).
IT IS SO ORDERED.
DATED: December 23, 2014

/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge

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